Wakilii

Sam Kiwanuka Walusimbi v Kate Nakatumba Kiwala Tamale (Miscellaneous Application 338 of 2024)

High Court · [2024] UGHCLD 66 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal, arising from judgment in Civil Suit No. 39 of 2005
Decision
Stay of execution granted subject to security conditions

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted stay of execution pending appeal where the applicant satisfied the legal requirements: a notice of appeal was filed, the application was made without unreasonable delay, the appeal grounds were arguable and not frivolous, and there was a real risk the appeal would be rendered nugatory if execution proceeded. The applicant was ordered to furnish security for costs of UGX 100,000,000 and deposit the duplicate certificate of title with the court registrar.

Outcome

Stay of execution granted subject to security conditions

Facts

The respondent obtained judgment in Civil Suit No. 39 of 2005 declaring her the lawful occupant of land comprised in LRV 2804 folio 20, Kibuga Block 203 plot 3265, revoking the applicant's leasehold interest, ordering cancellation of his name from the title, directing him to vacate within 90 days, and awarding UGX 80,000,000 general damages. The applicant filed a notice of appeal on 21 November 2023 and lodged Civil Appeal No. 1482 of 2023 in the Court of Appeal on 15 December 2023. On 13 February 2024, two days before expiry of the 90-day vacation period, the applicant filed this application seeking stay of execution. The respondent raised a preliminary objection that the applicant was in contempt of a self-executing order. The applicant had been in occupation of the suit land for over twenty years, operating a washing bay and park yard.

Issues

  1. Whether the applicant has met the conditions for grant of an order for stay of execution against the judgment and decree pending appeal.

Orders

  • The Decree and Orders made vide High Court Civil Suit No. 39 of 2005 are hereby stayed pending the hearing and disposal of Court of Appeal Civil Appeal No. 1482 of 2023.
  • The applicant is ordered to furnish security for costs to a tune of UGX 100,000,000 and the duplicate certificate of title of suit land comprised in LRV 2804 folio 20, Kibuga Block 203 plot 3265.
  • The amount of Uganda Shillings 100,000,000 shall be deposited on the court account as security within 30 days from 15th March 2024.
  • The certificate of title shall be deposited with Registrar of this court as security within fourteen days from today.
  • The applicant shall deposit the sum of money mentioned in order (b) on this Court's account and should present a receipt to the Deputy Registrar of this court who should upload the same in ECCMIS.
  • The applicant shall equally deposit the duplicate certificate of title of suit land comprised in LRV 2804 folio 20, Kibuga Block 203 plot 3265 with the Deputy Registrar of this Court not later than 28th March 2024.
  • Costs shall abide the outcome of the appeal.
  • Preliminary objection overruled.

Rules and key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Conditions for Grant
An applicant seeking stay of execution pending appeal must satisfy four conditions: (i) a notice of appeal has been filed; (ii) the application has been made without unreasonable delay; (iii) the appeal has a likelihood of success and is not frivolous; and (iv) if the stay is not granted, substantial loss may result to the applicant or the appeal would be rendered nugatory.
Civil Procedure — Stay of Execution — Likelihood of Success Test
In determining likelihood of success, the court must be satisfied that the prospects of the appeal succeeding are not remote but that there is a realistic chance of succeeding. More is required than a mere possibility of success. The appeal grounds must be arguable and not frivolous, meaning they must have some reasonable basis in law or equity and be capable of support by a good faith argument.
Civil Procedure — Stay of Execution — Security for Due Performance
No order for stay of execution shall be made unless the court is satisfied that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him or her. The objective of security is not to fetter the right of appeal but to ensure courts do not assist litigants to delay execution through vexatious and frivolous appeals. The decision to order security must be made in consonance with the probability of success of the appeal.
Civil Procedure — Contempt of Court — Self-Executing Orders — Application for Stay Before Deadline
Where an applicant files an application for stay of execution before the deadline specified in a self-executing court order, the filing acts as a measure of temporarily freezing time within which to execute the decree and prevents failure to comply with the order. Such an applicant is not in contempt of court. Filing after the deadline would constitute contempt, but filing before the deadline is timely even if done at the last minute.
Civil Procedure — Stay of Execution — Appeal Would Be Rendered Nugatory
Whether an appeal will be rendered nugatory if a stay is not granted depends on whether what is sought to be stayed, if allowed to happen, will be reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved, or whether it is in the public interest to grant a stay. Where an applicant faces eviction from land occupied for over twenty years and used for business, with risk of transfer to third parties before appeal determination, the appeal would be rendered nugatory without a stay.

Legislation cited (6)

Cases cited (8)

  • Betty Kizito v Dickson Nsubunga & Others (HCMA No. 25 and 26 of 2011)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (SCCA No. 18 of 1990)
  • Theodore Sekikubo & Others v Attorney General & Others (SCMA No. 3 of 2014)
  • Formula Feeds Limited & 3 Others v KCB Bank Ltd (HCMS No. 1647 of 2022)
  • Commissioner Customs Uganda Revenue Authority v Kayimba (CACA No. 62 of 2014)
  • Kyambongo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Civil Application No. 341 of 2013)
  • R v Ajit Singh s/o Vir Singh [1957] EA 822
  • John Baptist Kawanga v Namyalo Kevina & Another (HCMA No. 12 of 2017)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Sam_Kiwanuka_Walusimbi_v_Kate_Nakatumba_Kiwala_Tamale_(Miscellaneous_Application_338_of_2024)_[2024]_UGHCLD_66_(15_March_2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.